In this essay, the next in our series on the National Vetting Bureau (Children And Vulnerable Persons) Acts 2012 To 2016 - the new Irish vetting legislation, known until now as garda vetting - we’re going to look at two aspects of the vetting legislation. First, we will look at the creation of the vetting database. Second, we will explore the four main functions that the National Vetting Bureau (the “Bureau”) is empowered to carry out under the legislation. We’ll look at the importance of confidence in the exercise of the Bureau of its section 7 powers, and also at the fact that this is relatively unchartered territory for organisations, the Bureau and the persons applying to the new Bureau for a vetting disclosure.
WHAT IS THE VETTING DATABASE?
We touched on the National Vetting Bureau database at Number 13 in our 34 Terms You Should Know essay
But for the sake of clarity, it's the creation of a database system know as the National Vetting Bureau (Children and Vulnerable Persons) Database System. It includes:
- a register of organisations required to be registered with the Bureau
- a register of specified information
- and a register of people who have gone through the vetting process
It’s crucial to repeat again that vetting isn’t something that somehow ‘clears’ a person as being suitable to work in a particular role or activity with children or vulnerable persons.
Instead, it’s simply one more tool at the disposal of a recruiting organization, that helps them in their assessment of the person’s suitability, taking into account all of the recruitment steps (which includes, but absolutely definitely is not limited to, a criminal background check – vetting).
It’s that overall recruitment process that allows the organization to make as objective a decision as possible on the person’s suitability for the role.
WHAT IS A CRIMINAL RECORD?
According to the National Vetting Bureau:
MEANING OF A CRIMINAL RECORD
A criminal record in relation to a person means a record of the person’s convictions whether within or outside the state for any criminal offence together with any ancillary or consequential orders made pursuant to the convictions concerned or a record of any prosecutions pending against the person whether within or outside the state for any criminal offences or both.
A person shall not be obliged to provide details of any convictions to which Section 14A of the National Vetting Bureau (Children and Vulnerable Persons) Acts 2012 to 2016 applies.
(We’ll come to Section 14A (the statutory administrative filter) in a later essay however just know for the moment that this is essentially the 2016 amendment of the original 2012 vetting legislation, the amendment being required to bring it in line with certain rights to privacy and the principal of the rehabilitation of offenders).
WHAT IS SPECIFIED INFORMATION?
We’re going to re-visit the notion of 'specified information' in another essay, but if you need reminding, then have a quick look at term Number 31 in our 34 Terms You Should Know essay.
WHAT RULES GOVERN THE DATABASE?
Access to and use of the information contained in the database is governed by Part 2 of the National Vetting Bureau (Children And Vulnerable Persons) Acts 2012 To 2016
WHAT IS A DATABASE SYSTEM?
Let's start with a generally accepted definition:
Formally, a "database" refers to a set of related data and the way it is organized.
Access to these data is usually provided by a "database management system" (DBMS) consisting of an integrated set of computer software that allows users to interact with one or more databases and provides access to all of the data contained in the database (although restrictions may exist that limit access to particular data).
The "database management system" provides various functions that allow entry, storage and retrieval of large quantities of information and provides ways to manage how that information is organized.
Because of the close relationship between them, the term "database" is often used casually to refer to both a database and the "database management system" used to manipulate it.
So in the instance of the new National Vetting Bureau Database System, we can reference the generally accepted definition of a database system, and see that the new National Vetting Bureau Database System is likely to comprise:
- An integrated set of computer software that
- allows users (in this instance, officers of the National Vetting Bureau) to interact with one or more databases, which
- provides access to all of the data contained in the database (with restrictions where relevant) and
- provides functionality of the "database management system" that allows for entry, storage and retrieval of data in the National Vetting Bureau Database System.
WHAT IS THE BUREAU ABLE TO DO?
The Bureau gets its powers, as you might imagine, from the vetting legislation (and in particular from section 7).
THE BUREAU’S OVERARCHING DUTY
The overarching duty of the Bureau is, unsurprisingly: the provision of vetting services, to relevant organisations, in respect of relevant work or activities s.7(2) National Vetting Bureau Acts 2012 to 2016.
4 BROAD BUREAU FUNCTIONS
Broadly speaking the Bureau has what I’m classifying as four main functions (as set out in s.7(2)(a)-(g) of the legislation):
- 1. to consider & to process
- 2. to make enquiries
- 3. to examine & to establish / assess
- 4. to disclose
Let’s look at each of these in turn.
1. BUREAU DUTIES: TO CONSIDER & TO PROCESS: "THE 5 R’S"
An application to avail of the Bureau’s vetting service must, before anything else, meet what I call the 5 R’s criteria set out below.
Under section s.7(2)(a) the Bureau must consider and process an application for a vetting disclosure when it’s (capitals and numbers added):
- (1) Received by it from
- (2) Relevant organisations
- (3) Registered in the (4) Register of (5) Relevant organisations
If the Bureau is satisfied that the 5 Rs are met, then it’s obliged to deal with the application. If not, then it’s not.
2. BUREAU DUTIES: TO MAKE ENQUIRIES
The Bureau has a two-fold duty of enquiry. It’s required to make enquiries externally (with the Garda Siochana for example) and it’s also required to make enquiries internally (of the new National Vetting Bureau Database System).
The following are external enquiries to be made:
- To establish the identity of the person applying for a vetting disclosure
- To enquire with the Garda Siochana about an applicant and if they have a criminal record, or if there the Gardai hold specified information about them
- To make enquiries with organisations specified in Schedule 2 of the legislation (which has been updated now to include the Garda Siochana Ombudsman Commission), namely the majority of professional bodies in sectors dealing with health and social care (with exceptions)
The following are internal enquiries to be made:
- To see if the person applying for a vetting disclosure has a criminal record on the new National Vetting Bureau Database System
- To establish if there’s ‘specified information’ about the person on the new National Vetting Bureau Database System
3. BUREAU DUTIES: TO EXAMINE & TO ESTABLISH/ASSESS
Twinned with the duty to enquire, is the duty to examine the database – in order to assess / establish the presence of particulars (i.e. details) of specified information relating to someone going through the vetting process.
What’s the difference?
Well, to simply 'enquire' is not enough.
The Bureau has (1) to actually enquire and (2) to then assess / examine what comes to their attention.
Again, allied with the duty to enquire about someone’s identity, the enquiry isn’t enough: the Bureau has to establish the identity of the person going through the vetting process
There’s also the obligation to assess any specified information, ‘for the purposes of determining whether or not it should be disclosed’.
The duty to assess and examine again flows out of the Bureau’s duty to make enquiries of the Schedule 2 specified organisations, to follow up essentially on any specified information that one of those bodies may have been obliged to report to the Bureau as part of their own internal disciplinary, investigatory or other professional conduct inquiries held (however they’re described).
4. BUREAU DUTIES: TO DISCLOSE
Finally, the outcome of the Bureau fulfilling its s.7 Duties, is the Bureau’s requirement to make a vetting disclosure.
THE IMPORTANCE OF BUILDING TRUST
'Who guards the guardians', was essentially part of the line of inquiry conducted in the investigation that lead on 19th May 2016 to a 15-page report that was published by the Garda Ombudsman, into allegations that information was leaked from with the Garda Siochana, about the arrest of an Irish TD.
You can access the report here.
While it's important to note in the context of this essay this incident took place prior to the creation of the National Vetting Bureau, it does highlight the potential for future public perception problems, particularly as regards the use of specified information. No doubt the Bureau have added very rigorous access controls into the system, and possibly more rigorous than in the access arrangements to the current Pulse system. That would be a good development. Part of the solution to heading off any future potential perception issues, will be the extent of the rigour applied within the National Vetting Bureau to not only satisfying, but being able to show that they’ve satisfied, their section 7 duties.
The new National Vetting Bureau gets its statutory powers from section 7 of the vetting legislation. The Bureau has what I have loosely called four main functions. These functions create duties upon the Bureau in carrying out its overall mission, which is the provision of vetting services to people who meet the 5 R’s test.
It will be interesting over time to observe the extent to which the Bureau ensures that it can evidence, in the future, that it has complied with its section 7 duties when carrying out an assessment of a person’s application for a vetting disclosure.
In the vast majority of cases it is unlikely that this will become an issue.
However, we are in relatively uncharted territory today with the radically new requirement to consider so-called specified information.
Confidence in the new system will be important, and the building of that confidence will be tested as and when scrutiny is applied to the Bureau’s requirement to have met its section 7 duties in the consideration of their vetting application.
This essay is for general information purposes only and does not constitute legal or other professional advice.
Specific legal advice from a firm of solicitors should always be sought on the application of the law in any particular situation.
Whilst all reasonable endeavours have been made to ensure the accuracy of the content, no liability whatsoever is accepted for any omissions or errors or for any action taken in reliance of the information in this essay.